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Top court upholds tobacco ad rules

OTTAWA&ndash;The Supreme Court of Canada, concluding that protection of public health takes precedence over the rights of cigarette manufacturers, has upheld a decade-old federal law setting strict limits on tobacco advertising.

(CHARLES PLATIAU / REUTERS)

By Jim BrownCanadian press

Thu., June 28, 2007

OTTAWA–The Supreme Court of Canada, concluding that protection of public health takes precedence over the rights of cigarette manufacturers, has upheld a decade-old federal law setting strict limits on tobacco advertising.

The 9-0 judgment was hailed by Health Minister Tony Clement on Thursday as "a victory for all Canadians." He warned, however, that Ottawa must remain vigilant to ensure the tobacco industry doesn't try to exploit any potential loopholes in the regulatory regime.

Chief Justice Beverly McLachlin, writing for the unanimous court, noted there was some ambiguity in the wording of the 1997 legislation but found it was clear enough to pass legal muster.

She said the curbs imposed by the government – including bans on ads aimed at young people, on so-called lifestyle advertising that glamorizes smoking, and on sponsorship of sports and cultural events – can all be justified under the Charter of Rights.

"The impugned portions of (the legislation), properly interpreted, are constitutional in their entirety," wrote McLachlin.

The judgment doesn't mean cigarette advertising is totally banned in Canada. In fact, Simon Potter, a lawyer representing the tobacco industry, predicted companies will soon end the voluntary moratorium they had observed for the last decade while the case wended its way through the courts.

He insisted any new ad campaigns will be "very limited" and won't stray beyond the legal rules by targeting youths or portraying smokers as daring and dynamic individuals in the manner of the old Marlboro Man.

"There is a window for legitimate advertising of this legal product to adult consumers," said Potter. "You will not see billboard advertising, you will not see television advertising, you may see advertising in adult-only locations or advertising in mailings to adults, things like that."

Anti-smoking advocates were skeptical and renewed long-standing calls for the government to impose a total ban on tobacco advertising – something that could be legally difficult to do, in light of previous court rulings in other cases.

"Canadians are going to be very surprised, in the months ahead, when they see tobacco advertising resuming," said Rob Cunningham, a lawyer for the Canadian Cancer Society. "We're concerned about the impact on smoking rates."

Dr. Atul Kapur, president of Physicians for a Smoke-Free Canada, said the tobacco companies have tried to "fool the court" with their voluntary ad ban while the current law was under litigation.

"The law as it stands will allow, and does allow, advertising in newspapers and websites and by email and direct mail. ... It's not effective enough, and we need to have a comprehensive ban on advertising."

Clement, speaking in Toronto, was noncommittal on whether he might move toward a complete ban. But he expressed concern that changing communications technology over the last decade has opened new avenues for manufacturers to get their messages across.

"Speaking as a parent, not as a politician, I would be extremely perturbed if my 10-year-old daughter, who has an occasional use of a cellphone, receives a text message from tobacco companies in some way encouraging tobacco smoking."

Clement said Health Canada will monitor the situation closely and consult with anti-smoking groups to see if legal changes are needed. "If there are loopholes in this Act we will close them."

The court challenge was mounted by the country's three leading cigarette manufacturers – Imperial Tobacco, JTI Macdonald and Rothmans Benson and Hedges – who argued the legislation violated the right to free speech inherent in commercial advertising.

McLachlin agreed their rights were infringed, but said the infringement was minimal and was justified by the need to safeguard public health. She also took a shot at the tobacco companies for a "long history of misleading and deceptive advertising" that requires tough measures in response.

"The creative ability of the manufacturers to send positive messages about a product widely known to be noxious is impressive. In recent years, for example, manufacturers have used labels such as "additive free" and "100 per cent Canadian tobacco" to convey the impression that their product is wholesome and healthful."

The debate has been raging since 1988, when the Conservative government of Brian Mulroney enacted the Tobacco Product Control Act, prohibiting virtually all advertising by the industry.

That law was struck down by the Supreme Court in 1995 when a razor-thin 5-4 majority concluded Ottawa had not presented enough evidence to support such a sweeping ban.

McLachlin, who wrote the majority opinion in that case and is the only judge from those days still sitting on the court, noted Thursday that times have changed and better scientific evidence is now available.

"Tobacco is now irrefutably accepted as highly addictive and as imposing huge personal and social costs," she wrote.

She also noted federal regulators have adopted a "more restrained and nuanced" approach to the problems posed by advertising.

The Tobacco Act of 1997, brought in by the Liberal government of Jean Chrétien, didn't attempt to impose a blanket ban. In fact, it specifically allowed brand-name advertising in adult-oriented publications, in adult venues such as bars, and by direct mail to adults.

Industry spokespeople have long insisted their only goal is to engage in limited and responsible advertising. Critics say they don't trust the industry and insist that, given the evolution of scientific and social research into smoking in recent years, Ottawa could now have the legal ammunition it needs to restore a total ad ban.

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